What Judge Harvey said

Chris Keall

District Court Judge David Harvey has removed himself from the Kim Dotcom extradition case, due to be heard next March.

His step-down follows a pointed comment he made at the launch of the "A Fair Deal" coalition on Wednesday July 11 last week – a lobby group formed to focus on issues around the Trans Pacific Partnership free trade deal.

It was at 6.30pm at Auckland's Sky City Convention Centre, following the first day of sessions at InternetNZ's Nethui conference.

I was at the launch, and reported Judge Harvey's comment, which was: "We have met the enemy, and he is the US."

It finally hit mainstream media on Monday, July 16, when the Herald picked up on the comment.

Judge Harvey was chairman of the Copyright Tribunal for six years, and lectures part-time on information technology and the law at Auckland University.

He does play things on the front foot in terms of his frequently expressed opinions on legal and internet issues, and his stepping away will completely change the complexion of the extradition case, which is being followed around the world.

Given the extreme consequence of Judge Harvey's one-liner, it's worth looking at its context – which includes his broader assertion that NZ copyright law protects not just a copyright holder, but an audience's right to access content.

That is 100% true, but also wildly unpalatable for Kim Dotcom's foes. A US-driven chapter of the TPP would over-ride that philosophy.

First, we have to rewind to the morning of Wednesday, July 11, when Judge Harvey moderated a Nethui panel discussion on "regulating bad behaviour on the internet." At one point, he said, "We have met the enemy and he is us."

During his later keynote, on Friday, he elabourated on this theme, making the very good point that the internet didn't invent bullying or or sexual predators (he could have added that it has created a very efficient way of catching them, but I digress).

He summed up:

All of these behaviours pre-date the internet. It is not the technology. We, in fact, are the problem. As I said earlier at this conference, and there's the source [a Walt Kelly cartoon appears onscreen] 'We have met the enemy and he is us. It’s our problem'. It’s our behaviour.

It was a clever line (the Walt Kelly cartoon was from the 1960s and refers to the Vietnam War; paraphrasing a quote from 19th-century US naval commander Oliver Hazard Perry) and was duly retweeted by Russell Brown and other attendees.

Here is the full video (the build up to the enemy line comes about 8 min 30 sec in):

No problems there.

The more controversial segment was the "A Fair Deal" launch Wednesday evening.

It was there that Judge Harvey, taking the microphone from the floor during a Q&A, and riffed on the heavy-handed US approach to DVD region blocking. It was this speech that climaxed with a reworking of his "enemy" line from earlier in the day.

Some have said he got crucified for making bad pun.

But his comments that proceeded it also indicated he had a pretty clear view on the direction the US government's copyright policy, and its efforts to impose its view on the world.

Did they step over the line? You be the judge. Appearing in a personal capacity, he expressed his concerns about the TPP, and the technological prevention measures it may require member countries to enforce (the measures are pushed in a leaked copy of a US-backed chapter of the trade deal, still under negotiation; see a leaked version here).

Judge Harvey said:

I'd like to take this down to a personal level.

This change in copyright law is going to affect each and everyone of us and here's how it works.

Within the copyright spectrum, there are two types of rights. There is the author's right, if you like, to control copying, but there are also secondary rights that sit underneath that in what has been referred to by the Australian High Court as para-copyright.

That is the involvement of technological prevention measures.

There are technological protection measures of all sorts of flavours and one of the flavours and one of those flavours is one that stops you from accessing a region one DVD [the US region] on your region 4 [NZ] DVD player.

Now you can hack around that, and you can do that around New Zealand law perfectly legitimately under the 2008 amendments to the Copyright Act – because access was the issue, copying was not.

Under TPP and the American Millennium Copyright Act provisions, you will not be allowed to do that. That will be prohibited – point one.

Point two – if you do, you will be a criminal. That’s what will happen.

Now even before the 2008 amendments, it wasn’t criminalised.

There are all sorts of ways that this whole thing is being ramped up.

And if I can use Russell’s tweet from earlier on, ‘We have met the enemy and he is the US.’

You can listen to the audio as part of Peter Griffin's Sciblogs podcast here (Judge Harvey comments start 9 min 30 sec in).

I'm not 100% clear from the audio if Judge Harvey half-ate the "the" in "the US", or left it out for a cleaner pun on his earlier quote, but either way he is clearing saying "US".

And it's clear from the audience's reaction (nervous laughter, clapping, and someone exclaiming "woah") that there was little doubt in the rest of the room.

Now Judge Harvey has had to step down from the world's biggest copyright-related case, presumably under pressure. It seems a bit rough.

I have had a reasonable amount to do with Judge Harvey over the years, appeared before him as counsel, worked with him on the ADLS Law and Technology committee, and more recently met him at events discussing law and technology (including #nethui last week). He, more than any other judge I am aware of, has a deep understanding of the capacity of the internet to change social and business paradigms.

He understands how the internet works, and has a deep understanding of the legal principles surrounding technology - but especially Copyright and Privacy.

I was present when the words reported were spoken. I could see that given the talks earlier in the day, Judge Harvey made a witty play on words to demonstrate the seriousness of the PROPOSED changes, pushed by the US, in the TPPA.

I assume that Judge Harvey recused himself because the reported words alone appeared to show that he had a bias against the US as a litigant. I have seen judges recuse themselves for lesser comments than that reported.

Unfortunately, the context would have shown that in fact his only bias is against the policy of the US for PROPOSED changes under the TPPA. This is the real story here. This potentially impacts on all of us. And this has nothing to do with the Kim Dotcom case, which will not consider or analyze the TPPA changes in any way.

So, it seems that Judge Harvey has recused himself from a case that he would have relished hearing, and one that he was best disposed to deal with out of all of the judiciary. All for the maxim that 'Justice must not only be done, but must also be SEEN to be done'.

"So, it seems that Judge Harvey has recused himself from a case that he would have relished hearing, and one that he was best disposed to deal with out of all of the judiciary."

Really, "out of all the judiciary", you reckon?
Harv, boasts a level of omniscience -- on the internet -- that is the envy of all his colleagues? WOW! Is that fact, opinion, general consensus, grandiosity, or a measure of your conceit?

Others might say, that -- what Harvey lacks in judicial prudence -- as well as jurisprudence -- he more than makes up for in jaw-dropping fecklessness.

It may not have been "wise" perhaps, but I suspect that Judge Harvey may have already decided that he was going to say this at some point, and that his motives for doing so are yet to be made public. John Morrison's comment above is perhaps naive?

As someone who was also at the #nethui forum where Judge Harvey made his statement, it's clear that he was not impressed with the US' "IP Chapter" reputed to be in the top secret TPPA negotiations. I have the utmost respect for Judge Harvey's ethics and appreciate why he stood down. It's too bad for Kim Dotcom (who I think is innocent, and would be more than justified in taking the US gov't for everything he's lost + damages), as Judge Harvey is certainly very aware of the issues related to the case... On the plus side, however, it now means that Judge Harvey can now take a more active roll in important events at a national scale (namely NZ's flirtation with a "High Quality Trade Agreement" - note, it's no longer called a "Free Trade Agreement" - with the US) that he might have had to avoid had he continued on this particular case. Personally, I think he has the potential to do more good for the nation if his hands (and, more importantly, his tongue) aren't tied due to a particular case.

Unfortunately the Judge has made a bad mistake. This is being reporting in the US, see Business Insider website, and some of the blog comments are extremely angry i.e. they have just picked up the headline and feel very insulted NZ is calling US the enemy. Good on him for stepping down which takes oxygen out of the fire.

The US *is* emerging as the enemy in the TPPA context. They're massively overstepping their brief and that of a "High Quality Trade Agreement" - the "IP Chapter" is a thinly veiled attempt by US corporate lobbyists to perpetuate their existence and the viability of their obsolete business models through foreign policy rather than accepting the adaptation imperative dictated by market forces (and, as I've said before in NBR comments, I say this as an expat Yank, lest my propriety be called into question).

The US pulls the strings to the NZ puppet state. NZ needs to grow some balls and have its own opinion. The Judge is allowed to have his personal opinions which can be different to his job which is interpreting the law. It seems a pity that the Govt Mandarins who insisted on sending the 'A Team' police raid to Dotcom's house are now trying to manipulate the extradition case outcome by pressuring the Judge to stand down, so one more sympathetic to the US position can take his place. Pity David Lange is gone, needs someone like him to stand up to the US bullying.

‘There is no need to sally forth, for it remains true that those things which make us human are, curiously enough, always close at hand. Resolve, then, that on this very ground, with small flags waving and tiny blasts of tiny trumpets, we shall meet the enemy, and not only may he be ours, he may be us.’

Not all surprised. This is the very same judge who discharged, without conviction, an American billionaire caught with drugs at Auckland airport in 2001. His parting words were: that he hoped the visitor would enjoy all that Auckland had to offer (or similar).

Nah, hes saying judge harvey imposes sentences on people caught with drugs by Customs according to their wealth. And if you happen to be a billionaire, then the judge fair on beams at you and wishes you a happy stay, as he dischargess you without conviction. Of course, making a donation helps, as does having Marie Dhyberg threatening to sue your a*se off if the guy is named.

So his argument is based on the restriction of content? The 'it isn't available in NZ so I am forced to download it' argument. Is this really the case though? I certainly don't think so for music (can anybody cite an example? The price-gouging argument is a different argument btw), movies to a limited extent (but most films are in NZ cinemas without delays and follow on DVD soon after), TV shows probably have more of a case.
I personally think that people download because they can and the consequences are minimal (more in line with his original meaning). It then comes down to a personal morality about infringing copyright.

I'm not sure that's entirely true, Lazlo. Certainly, for music there's no excuse - you can buy online readily and cheaply.

And you can indeed get TV/Movie content in NZ if you're willing to wait a very long time (years in some cases) or pay Sky TV a large monthly sum to access the content when Sky wants you to...

What most downloaders I've spoken to want is the ability to watch a TV show or movie when they want to, on the device they choose. They're willing to pay for this, however the industry has decided not to allow that and instead has gone out of its way to criminalise its customer base.

I'd like to see our copyright laws catch up with customer expectations. How about a clause that says the copyright tribunal action can only come into effect if the rights holders make the content available online? That would encourage the rights holders to offer services like Quicklix, Netflix, Hulu et al and we'd have a legal alternative.

I agree there is a spectrum here and that not all content is entirely equal. If media reports are to be believed then the first round of strike notices in NZ were delivered for Rihanna albums, Harry Potter 7 and Microsoft Office. Like music, there is no excuse for software piracy - Office is widely available legally and, more importantly, there are open source alternatives. In both cases I believe people download these things illegally because they don't want to pay for them.
I have sympathy for the TV show argument but I'm open to evidence that copyright holders have pursued anyone in these cases. Movies, though, I still contend are not the same. Making films is very expensive and for every financial success there are numerous failures. A comment in the other story talks of 'greedy' rights holders and 'antiquated business models'. I hear these comments all the time but the business model seems to be an investment based one which spreads risk. People concentrate on the financial successes and call them greedy (or do they mean successful?). It's almost as though they are implying that there should be a point at which a film makes enough money to go into public domain. Does that also mean they are bailed out for the failures?
(apologies this got a bit rambling).

In 1985 we stood up to the Bully Boy that is Uncle Sam. And those of us who were around at the time supported and appaulded our government. What we need is another government like we had in 1984/87 One with balls to stand up to foreign bullies and also to take the radical measures internally to get our economy moving again. Problem is the bastard child MMP means that 1984/87 government can never exist until we get rid of it.

I was "around at the time" and I most certainly did not "applaud" Lange.
All the US asked was, "if you want cavalry assistance in your hour of need, then you should at least help feed the horses in peace time."
Lange took a stance that was politically expedient.
Exactly the same when he let the Rainbow Warrior bombers go home free.